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H. 4432
STATUS INFORMATION
General Bill
Sponsors: Reps. G.M. Smith and Weeks
Document Path: l:\council\bills\ms\7010ahb04.doc
Introduced in the House on January 13, 2004
Currently residing in the House Committee on Judiciary
Summary: Criminal conviction expungement provisions
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number
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12/3/2003 House Prefiled
12/3/2003 House Referred to Committee on Judiciary
1/7/2004 Scrivener's error corrected
1/13/2004 House Introduced and read first time HJ-71
1/13/2004 House Referred to Committee on Judiciary HJ-72
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND ARTICLE 11, CHAPTER 5, TITLE 22 OF THE CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE EXPUNGEMENT OF CRIMINAL RECORDS, SO AS TO DEFINE 'CONVICTION', PROVIDE A STATUTORY PROCEDURE FOR OBTAINING EXPUNGEMENT OF A CRIMINAL RECORD, AUTHORIZE AN EXPUNGEMENT FEE OF THREE HUNDRED FIFTY DOLLARS TO THE CIRCUIT SOLICITOR, NAME THE GOVERNMENT AGENCIES REQUIRING NOTICE OF THE EXPUNGEMENT, AUTHORIZE A VERIFICATION FEE OF TWENTY-FIVE DOLLARS TO SLED, AND REQUIRE SLED TO KEEP A NONPUBLIC RECORD OF THE EXPUNGEMENT.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Article 11, Chapter 5, Title 22, as last amended by Act 92 of 2003, is further amended to read:
Section 22-5-905. As used in this article, 'conviction' includes a guilty plea, a plea of nolo contendere, or the forfeiting of bail.
Section 22-5-910. Three years after the date of Following a first offense conviction in a magistrate's court or a municipal court, the defendant after three years from the date of the conviction may apply, or cause someone acting on his behalf to apply, to the circuit court for an order expunging the records of the arrest and conviction. However, This section does not apply to an offense involving the operation of a motor vehicle, to a violation of Title 50 or the regulations promulgated under it for which points are assessed, suspension is provided for, or enhanced penalties for subsequent offenses are authorized, or to an offense contained in Chapter 25 of Title 16, except first offense criminal domestic violence as contained in Section 16-25-20. If the defendant has had no other conviction during the three-year period following the first offense conviction in a magistrate's court or a municipal court, the circuit court may issue an order expunging the records. NoA person may not have his records expunged under pursuant to this section more than once. A person may have his record expunged even though the conviction occurred prior to before June 1, 1992.
After the expungement, the South Carolina Law Enforcement Division is required to keep a nonpublic record of the offense and the date of the expungement to ensure that no person takes advantage of the rights of this section more than once. This nonpublic record is not subject to release under Section 34-11-95, the Freedom of Information Act, or any other provision of law except to those authorized law or court officials who need to know this information in order to prevent the rights afforded by this section from being taken advantage of more than once.
As used in this section, 'conviction' includes a guilty plea, a plea of nolo contendere, or the forfeiting of bail.
Section 22-5-920. (A) As used in this section, 'conviction' includes a guilty plea, a plea of nolo contendere, or the forfeiting of bail.
(B) Following Fifteen years after the date of a first offense conviction as a youthful offender, the defendant after fifteen years from the date of the conviction may apply, or cause someone acting on his behalf to apply, to the circuit court for an order expunging the records of the arrest and conviction. However,This section does not apply to an offense involving the operation of a motor vehicle, to a violation of Title 50 or the regulations promulgated under it for which points are assessed, suspension is provided for, or enhanced penalties for subsequent offenses are authorized, to an offense classified as a violent crime in Section 16-1-60, or to an offense contained in Chapter 25 of Title 16, except first offense criminal domestic violence as contained in Section 16-25-20 as otherwise provided in Section 16-25-30. If the defendant has had no other conviction during the fifteen-year period following the first offense conviction as a youthful offender, the circuit court may issue an order expunging the records. NoA person may not have his records expunged under pursuant to this section more than once. A person may have his record expunged even though the conviction occurred before the effective date of this section.
(C) After the expungement, the South Carolina Law Enforcement Division is required to keep a nonpublic record of the offense and the date of its expungement to ensure that no person takes advantage of the rights permitted by this section more than once. This nonpublic record is not subject to release under Section 34-11-95, the Freedom of Information Act, or another provision of law, except to those authorized law enforcement or court officials who need this information in order to prevent the rights afforded by this section from being taken advantage of more than once.
Section 22-5-930. (A) A person seeking expungement of a criminal record as authorized pursuant to this article or another provision of law, shall apply, or his attorney shall apply on his behalf, for an order of expungement. A blank expungement order must be obtained from the clerk of court in the county where the charge initiated. An application for an order or expungement may be made directly to the circuit court or to the circuit solicitor. If an application is made to the circuit solicitor, the person must pay a fee of three hundred fifty dollars for each order of expungement to defray the costs associated with the expungement process. The circuit solicitor's fee is in addition to the filing fee required by Section 8-21-310(21). If an application is made directly to the circuit court, the person must pay the filing fee as required by Section 8-21-310(21), which must be deposited in the county general fund. A fee may not be charged by the circuit solicitor or clerk of court to a person seeking expungement pursuant to Section 17-1-40.
(B) A person's attorney, or the circuit solicitor if application is made directly to him, shall ensure the expungement process is properly conducted including, but not limited to:
(1) assisting the person in completing the order;
(2) coordinating with the South Carolina Law Enforcement Division (SLED) to confirm the criminal charge may be expunged;
(3) verifying all necessary signatures;
(4) directing the person on the proper filing of the completed order of expungement with the clerk of court; and
(5) providing a list, with addresses, of government agencies that must receive the order of expungement including, but not limited to:
(a) the arresting law enforcement agency;
(b) the detention facility or jail;
(c) the solicitor's office;
(d) the magistrate's, municipal, or circuit court where the arrest warrant originated; and
(e) SLED.
(C) SLED shall verify and document that the criminal charge may be expunged pursuant to this article or another provision of law and shall charge a fee of twenty-five dollars for each criminal charge payable by certified check or money order. SLED shall forward the necessary documentation to the person's attorney or the circuit solicitor if application is made directly to him.
Section 22-5-940. After expungement, SLED shall keep a nonpublic record of the offense and the date of its expungement to ensure that a person does not take advantage of the rights of this article more than once. This nonpublic record is not subject to release pursuant to Section 34-11-95, the Freedom of Information Act, or another provision of law, except to those authorized law enforcement or court officials who require the information to prevent a person from taking advantage of the rights afforded by this section more than once. A copy of the order of expungement signed by the circuit court judge or certified by the clerk of court serves as a nonpublic record of the offense and the date of the expungement."
SECTION 2. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 3. This act takes effect upon approval by the Governor.
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